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Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 6 December 18, 2003 building permit it the classic example of a ministerial permit. If a property already has the proper zoning, the Planning Director to deny a building permit solely based upon the General Plan, because unlike rezonings and SMA permits, the laws do not give the Director or any other official the power to invoke the General Plan at that late stage. For example, if a property is zoned "Residential", but happens to be "Open" in the General Plan, the County is not empowered to deny the building permit based solely upon the General Plan. The General Plan is not applied at that stage; it is primarily to be applied at the stage of rezoning, SMA permits, use permits, and other discretionary approvals. At p. 9-10 of the letter, there is reference to landowners having vested rights to proceed with construction of additional dwellings. It is not clear to me what this is referring to. None of the proposed land use changes in the General Plan affect rights that have already been created by final subdivision approvals. As described in the previous paragraph, if a landowner has an automatic right to a building permit based upon zoning, the General Plan designation can't change that. 4. The letter contains criticism of a proposal in the draft General Plan that the zoning code be amended to include a new "Conservation" zone, which would cover land that should be kept in a largely natural state, but that "may not be in the Conservation District." This proposal is not meant to assert jurisdiction over lands in the state land use conservation district, as the text of the proposed amendment clearly states. Those lands are under the jurisdiction of the BLNR (except the county has some jurisdiction when they are also in the SMA.) The point of this proposed zoning district is that there are lands outside of the conservation district that should be kept in a largely natural state, such as some gulches, areas with very steep slopes, and historical sites, but no zoning district that really accomplishes that. The "Open" zoning district can allow considerable ground alteration. The City and County of Honolulu has the equivalent of this "Conservation" zone in its "Preservation" zones. Creating a "Conservation" zoning district will not in itself be a taking. Applying it to a particular piece of property may be a taking under the analysis described above, if it results in the loss of all economic benefit from the entire parcel, but this is an analysis that has to be made on a case-by-case basis whenever property would be rezoned to Conservation. 5. Pages 0-13 of the letter argues that the provision in the General Plan requiring public access of coastal development is unconstitutional. This provision being criticized is in the existing (1989) General Plan. Various state laws (H.R.S. sec. 46-6.5, H.R.S. sec. 205A -26(1)(A) and Chap. 34 of the Hawaii County Code require public access for